Opinion of the Court - ANDERS, J. Jan. 1893.] Pacific Railroad Company empowered it to construct one specified branch line of road, and we must presume that if congress had intended to authorize it to build branches generally it would have said so. We are constrained to hold, therefore, that the company, under its charter, is without legal power or authority to construct any other branch line than the one therein mentioned. As we understand it, the Tacoma, Olympia & Gray's Harbor Railroad Company was incorporated under the laws of this state, for the express purpose of building this railroad. The two companies are distinct corporations and derive their powers from separate sources. One was created by the state and possesses only such powers and privileges and is subject to such restrictions as the state has granted or imposed. The other was chartered by congress, and its rights and duties were prescribed by its charter. And this being so, it seems to us that neither can enlarge its privileges, or gain any immunities, under the law, by any arrangement it may make with the other. It is further insisted, however, by appellant, that § 17 of the charter of the Northern Pacific Railroad Company, taken in connection with § 1 of the act of the legislature of March 28, 1890 (Gen. Stat., § 1535), authorizes it to construct branch roads in this state. But, so far as the present case is concerned, it is not necessary to determine the effect of this legislation. It is sufficient to observe that the Northern Pacific Railroad Company has not brought itself within the provisions of the act of our legislature. By said § 1535 it is provided, among other things, that any railroad corporation organized under the laws of this state, or of the United States, may build branch roads, either from any point on its line of road, or from any point on the line of any other road. But it is also provided that, before building any such branch road, such corporation shall, by resolution of its directors or trustees, to be entered Opinion of the Court-ANDERS, J. [5 Wash. in the records of its proceedings, designate the route of such proposed branch and file a copy of such record, certified by the president and secretary, in the office of the secretary of state, who shall endorse thereon the date of the filing thereof, and record the same, and thereupon such corporation shall have all the rights and privileges to build such branch, and receive aid thereto, which it would have had if it had been authorized in its charter or articles of incorporation. For aught that appears in the record, the railroad company failed to comply with the requirements of this statute, and it is, therefore, not in a position to claim any benefits thereunder. Nor do we think that the respondent is estopped by the recitals in the deed, or by the evidence, from denying the right of his grantor to build branch roads. The word "branches," as therein used, must be taken to mean such branches as the railroad company was, or might be, legally authorized to construct, not such as it might build or operate in the name of some other corporation. Some minor matters were discussed by counsel which, in view of what we have already said, it is not necessary to consider. Upon the whole case as presented in the record, we think the judgment of the lower court was right, and it is, therefore, affirmed. DUNBAR, C. J., and SCOTT and STILES, JJ., concur. Jan. 1893 ] Opinion of the Court -DUNBAR, C. J. 5 517 [No, 778. Decided January 13, 1893.] THE STATE OF WASHINGTON, on the Relation of G. L. ent. APPEAL FROM JUSTICE OF THE PEACE-REFUSAL TO DISMISS ABUSE OF DISCRETION. The supreme court will presume that the superior court did not abuse its discretion in denying a motion to dismiss an appeal from the judgment of a justice of the peace, when there is no showing to the contrary. Original Application for Prohibition. J. G. Davis, for relator. The opinion of the court was delivered by On the DUNBAR, C. J.-Judgment was rendered for the plaintiff G. L. Cline on the 23d day of September, 1892. 11th day of October, 1892, the attorney for defendants served a bond and notice of appeal to the superior court of Pierce county, Washington, in behalf of the defendant, upon the attorney for the plaintiff, and C. L. Beach, justice of the peace, before whom said cause was tried. The papers and transcript in the said cause were not filed in the superior court until the 26th day of October, 1892. On the 27th day of October, 1892, the attorney for the plaintiff filed with the clerk of the superior court a motion, asking that said cause be dismissed on the grounds that the appeal taken in said cause was not taken within the time prescribed by statute, which motion was overruled by the judge of said superior court. The statute, it is true, prescribes that the papers and transcript of the case in the justice's court shall be filed by the appellant in the superior court within ten days after the 9 308 32* 97 37* 449 Syllabus. [ 5 Wash. judgment was rendered; but in this case the notice of appeal having been given, and a bond filed within the time prescribed by law, and the defendant not moving to dismiss the case on the ground of the absence of the transcript until after the transcript had been filed in the court, and there being no showing to the contrary, this court will presume that good cause was shown to the superior court for failure to file the transcript, or at least that the court did not abuse its discretion in refusing to dismiss the appeal, and will, therefore, refuse to interfere with the discretion of the court in denying the motion to dismiss. The application for an alternative writ of prohibition will be denied. ANDERS, SCOTT, HOYT and STILES, JJ., concur. 5 518 7 308 8 594 32* 457 32* 771 34*1103 36* 444 5 518 9 670 32* 457 38* 207 5 518 40 556 [No. 795. Decided January 16, 1893.] THE STATE OF WASHINGTON, on the relation of J. H. Cum mings, v. SUPERIOR COURT OF KING COUNTY, AND RICHARD OSBORN, a Judge of said Court, Respondents. PROHIBITION -COURTS WANT OF JURISDICTION-NON-RESIDENT A court has no jurisdiction to try an action against a defendant who is not a resident of the county and has not been served with process therein, when the defendant, at the time he appears and demurs or answers, files an affidavit of merits and demands that the trial be had in the proper county; and prohibition will lie to prevent a trial by such court. The fact that a defendant in such case, at the time of filing his affidavit of merits, does not demur or answer, but makes demand for a bill of particulars preparatory to answering, is a substantial compliance with the provisions of § 162, Code of Procedure. (DUNBAR, C. J., and ANDERS, J., dissent.) Where a writ of prohibition is granted against the superior court to prevent its trying a case for want of jurisdiction, costs should be taxed to the plaintiff in that court as the real party in interest. Jan. 1893.] Opinion of the Court- HOYT, J. Original Application for Prohibition. C. E. Shepard, for relator. Hughes, Hastings & Stedman, for respondent. The opinion of the court was delivered by HOYT, J. — The defendant was not served in the county in which this action was commenced, nor was he a resident of that county, but, on the contrary, was a bona fide resident of the county of Pierce, in which service of process was made upon him. Such being the case, King county was not the proper county for the trial of the action. It is, however, provided in § 162, Code of Procedure, that such fact shall not prevent a trial of the cause in the county in which the action has been commenced, unless the defendant, at the time he appears and demurs or answers, files an affidavit of merits and demands that the trial be had in the proper county. It follows as a necessary consequence that upon such affidavit of merits being filed and demand made as required in said section, the cause cannot be tried in the court where the action has been commenced. This provision, in our opinion, is equivalent to one which declared that such court should have no jurisdiction of the action for the purposes of trial. If the trial could not be had in that county, then the court had no jurisdiction for that purpose. Under these circumstances, if such court should proceed with the trial of the cause it would be proceeding without jurisdiction, and under the rule established by this court in the case of North Yakima v. Superior Court, 4 Wash. 655 (30 Pac. Rep. 1053), should be prohibited from so doing. We are satisfied with the rule announced in that case, and do not think that the fact, that advantage of the error in proceeding with the trial might be taken by the defendant upon an appeal from a judgment rendered in the |